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Republic v Tenubobo [2010] KIHC 101; CRC 32 of 2010 (19 October 2010)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION

Held at Betio
Republic of Kiribati

High Court Criminal Case 32 of 2010

THE REPUBLIC

V

ANETI TENUBOBO

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Raweita Beniata

Date of Hearing: 19 October 2010

JUDGMENT

Aneti Tenubobo has been charged with three offences arising out of the same incident, murder, dangerous driving causing death and driving a motor vehicle without a driving licence. The first two counts must be alternative although that is not how the charge is expressed.

Particulars

Murder: Aneti Tenubobo, on the 21st April 2010 at Urano vicinity in Bikenibeu, South Tarawa murdered Ten Nito Rawita.

Dangerous Driving Causing Death: Aneti Tenubobo, on the
21st April 2010 caused the death of Ten Nito Rawita by driving a motor vehicle namely a truck on a road in a manner dangerous to another person or persons.

Driving a motor vehicle without a driving licence: Aneti Tenubobo, on the 21st April 2010 at Urano vicinity in Bikenibeu, South Tarawa drove a motor vehicle namely truck on a road without a driver licence for that class of vehicle.

On arraignment Aneti pleaded not guilty to all charges.

The prosecution led evidence from Nei Tumai Bruno, revenue cashier at TUC that she had searched the records. Aneti had a licence for 2008-2009 but none since. Mr Beniata did not cross examine Nei Tumai but submitted in his final address that the records should have been produced to the Court. I reject the submission. Nei Tumai's evidence is uncontradicted. I accept it. The accused is beyond reasonable doubt guilty on count 3, not having a driving licence last 21 April.

In summary, the prosecution case is that some time after midnight the accused, driving a truck, deliberately drove into a pedestrian walking on the other side of the road. Not only drove into him but over him and, turning off his lights, accelerated, drove off without stopping.

Dr Elsie Beenati, on duty at the TCH to which the victim's body was brought, made a report (Exhibit P1) describing injuries. The doctor had found the victim dead on arrival. In her opinion, expressed to the Court, the cause of death was "severe blood loss from severe head injuries".

The first and principal witness for the prosecution was Tekiata Marewerewe, bus driver, living at Bikenibeu. He had been at the premises of the business Nei Manu at Nawerewere. Aneti was to give him a lift home:

On truck – Aneti driving – I was in front. I was to be dropped off on that vehicle ..... Saw two people walking on road. Didn't really recognize them. Didn't reach hospital. They were walking on lagoon side. We were driving on ocean side. He asked if I knew the man. "I think I know him. It looks like Nito". Then driving in middle almost to lagoon side. Nito was walking towards Betio and then he turned back walking towards us. Truck going towards Betio. He seemed to be walking backwards: then we bumped into him. We were 5m away when saw Nito walking towards the truck. Nito on lagoon side. Truck going direct to him. Hit Nito. He drove on and over him and drove away. He said not to tell anybody. When saw Nito we were travelling about 30. After hitting Nito very fast. After running over and taking off, our lights turned off. We drove into where Peace Corps used to be ..... (Examination in chief).

Nito did not run across the road as we approached him. (Cross examination).

Tekiata was a good witness, appeared to be telling the Court accurately what happened. His evidence is confirmed in some respects by other witnesses. I accept his account beyond reasonable doubt.

Mr Beniata, in cross examination, merely put to Tekiata that Nito ran across the road into the path of the truck. Tekiata denied it. I accept the denial. Mr Beniata put the same suggestion to other witnesses. It seemed that he was suggesting, in defence of his client, that Nito deliberately ran across the road into the path of the truck, attempting to commit suicide. The suggestion was denied by all except Nito's young lady companion Nei Ratau Bob, who agreed they had had an argument while walking along at Nawerewere but "it was all over". She was walking in front and he three or so metres behind. In cross examination she did say, "I'm not sure if that (the argument) was why he ran" (across the road). I discount that piece of her evidence for two reasons. First Mr Beniata had not put to her that Nito did run across the road. I am not sure if she understood what he was asking her. Secondly Nito was walking behind her and she did not say she was looking back.

N. Ratau Bob:

Knew Nito – with him that night at Temaiku. Walked back to Nawerewere: past midnight, looking for a bus. ----- Nito with me: walking with me. ----- we were walking towards Betio, on ocean side. We crossed the road to lagoon side. I was in front: he was behind 3m. Not talking: not angry with each other.

I heard sound of a vehicle right next to us. I heard Nito shout out, "It's a car" and then I heard a bang. I looked back. I saw a car crash Nito: he was underneath. He bumped over Nito and took off. After bumping over Nito it took off fast. A white truck. Can't recall about lights.

I ran to Nito. Nito was hit on lagoon side. Lying on the road on the other side, lagoon side. Losing blood. Injuries on back of head.

Mikaere Iotebwa, aged 18:

Looking from house on ocean side. Saw a person wearing something white, not knowing if man or woman – walking on lagoon side. Heard crash of car – lady crying. I didn't look. White car, truck. Light from store next to road. Didn't see light from truck. Didn't look. Thought car bumping into a hole. Loud noise. Didn't see what happened to car – it took off fast.

Namanoku Nenetaake, aged 20 worked at Nei Manu with Aneti. They were there together on the night of the accident:

We were on duty. Aneti was drinking: not I. vodka or Jim Beam. Drinking from 2000 on. Went to drop people at midnight ..... Aneti came back later and said, "There's a dead person". He gave me the key and rode off on motorbike...... (Examination in chief).

I went to road and looked towards TCH: saw a lot of people. 3-5 mins before truck came back. (Cross examination).

I accept the evidence of Nei Ratau (with the exception I have canvassed), of Mikaere and of Namanoku. They support the account given by Tekiata.

The accused, as was his right, did not give evidence nor any other witness for the defence.

I have no reasonable doubt that Aneti by his driving caused Nito's death. He is undoubtedly guilty on count 2.

I have some doubt, it may be reasonable, whether Aneti's actions were deliberate. For this reason: no motive has been suggested. Perhaps it was not a deliberate killing: simply very bad driving. I should give the accused the benefit of the doubt.

The accused is not guilty on count 1 and guilty on counts 2 and 3.

Dated the 22nd day of October 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice